Wilson v. State

501 N.W.2d 68, 1993 Iowa App. LEXIS 46, 1993 WL 180792
CourtCourt of Appeals of Iowa
DecidedMarch 30, 1993
DocketNo. 91-1910
StatusPublished

This text of 501 N.W.2d 68 (Wilson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. State, 501 N.W.2d 68, 1993 Iowa App. LEXIS 46, 1993 WL 180792 (iowactapp 1993).

Opinions

SCHLEGEL, Judge.

The applicant, Eddie Jerome Wilson, appeals the denial of his petition for postcon-viction relief. He was convicted, following a jury trial, of one count of second-degree sexual abuse for sexually abusing his daughter, and he is serving a sentence not to exceed twenty-five years as a result of the conviction. Wilson brought this action claiming ineffective assistance of trial counsel and prosecutor misconduct. He also alleges ineffective assistance of appellate counsel.

The trial court held that Wilson’s trial counsel may have neglected to explore the consequences of the existence of a formerly unknown examining physician, but that a different result would not necessarily have resulted had counsel investigated the disclosure “to its furthest point of discovery.” Wilson’s trial counsel deposed Wilson’s ex-wife, the mother of the children alleged to have been sexually abused. During the deposition, the witness testified the children had only been examined by Dr. Shah, the State’s expert witness. In fact, the witness had also taken the girls to Dr. Willson, a pediatrician, for the specific purpose of examining them to determine whether they had been sexually abused.

The record indicates the witness advised the prosecutor of this error, perhaps the evening before Wilson’s criminal trial. Wilson’s defense counsel was not told of the correction prior to trial. However, during the cross-examination of the children’s mother, Wilson’s defense counsel did learn that the children had been taken by her to be examined by Dr. Willson in connection with the claimed sexual abuse. Counsel for the defendant (the applicant) did not pursue this information in any manner whatsoever, and it is his failure to do so which Wilson claims constituted ineffective assistance of counsel.

The State contends defense counsel’s failure to investigate the earlier examination was a strategic decision and did not constitute ineffective assistance of counsel. [70]*70Alternatively, the State claims defendant waived the ineffective assistance claim by failing to raise the issue on direct appeal. However, this issue was fully tried and decided in the postconviction trial court. In addition, the State’s contention that applicant failed to preserve this issue is waived since it is being raised for the first time on appeal. The applicant’s alternative claim of ineffective assistance of appellate counsel for failing to raise the issues in this case on appeal has also been properly preserved for appellate review.

To prevail on a claim of ineffective assistance of counsel, a defendant must establish that: (1) defense counsel breached an essential duty such that counsel was not functioning as “counsel” as guaranteed by the Sixth Amendment; and (2) the deficient performance by counsel so prejudiced the defendant that he was actually deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); White v. State, 380 N.W.2d 1, 3 (Iowa App.1985). A defendant is not entitled to perfect representation, but rather only that within the normal range of competency. State v. Halstead, 362 N.W.2d 504, 508 (Iowa 1985).

Having thoroughly reviewed the record in light of these guiding principles, we conclude defense counsel breached an essential duty. Regarding defense counsel’s conduct, the postconviction court stated:

With the benefit of “instant replay” it can be accepted that Defendant’s counsel could have (a) requested a side bar or in-chambers conference, (b) moved for a continuance, (c) requested opportunity to discover the newly disclosed doctor, (d) moved for a mistrial.
Each and every suggested option is a valid course of action. But in the instantaneous and reflexive context of the trial arena, such choices must be balanced by the primary concern of a defending counsel, namely, what will be the impact upon the jury? Will they attach undue significance if attention is drawn to a matter. In retrospect and enjoying the benefit of 20/20 hindsight, trial counsel should not have let the matter slide by but should have sought opportunity to investigate the significance of the disclosure. (Emphasis added.)

The above quoted language from the court’s ruling indicates its belief that counsel should have pursued one or more of the alternatives available, upon discovery of the changed testimony. We agree that the failure to pursue one of those alternatives breached an essential duty — the duty of presenting a careful and thorough defense.

The trial court indicated its lack of reliance upon the proper performance of effective counsel when it stated:

This Court’s ultimate finding and conclusion that Defendant failed to establish the prejudice component will be disposi-tive of the instant case.

We hold that the record in this case demonstrates that counsel for the defendant (applicant herein) breached an essential duty by failing to pursue proper inquiry and action when he learned of the second examining physician. We also hold that applicant was prejudiced by that breach.

The trial court, in its ruling denying post-conviction relief stated:

The instant record established by the respective doctors’ testimonies leads this court to conclude Dr. Shah’s testimony would have been unaffected by the examining doctor’s testimony.

We believe the trial court misses the significance of Dr. Shah’s own testimony at the postconviction relief hearing. Under questioning by counsel for the applicant, Dr. Shah testified as follows:

Q: (By Mr. Eastman) Okay. And in fact in your deposition we took for this hearing today, I asked you about your findings with regard to Stephanie that you saw through the colposcope. And I asked you if those things — had this event occurred before April 19 of 1988, if those things would have been visible to the naked eye at that time. Do you recall your answer? A: No, I don’t.
jjc * * ⅜ # *
[71]*71Q: (By Mr. Eastman) What I asked you — it appears on page eleven of the deposition we took.
Question: ... (T)he evidence that was presented at trial, as I understand it, was that the last time Eddie Wilson would have had any opportunity to have assaulted Stephanie would have been in — .
And I think the evidence has been late January or early February that Dianne testified here to today, 1988.
And this exam by Dr. Willson was not done until April of 1988.
And then your examination was in late August of 1988.
And what I’m asking you is, with those times in mind and what you saw when you did your exam in late August of 1988, is it reasonable, or possible even, to say that in early April of 1988 those enlarged blood vessels would have been visible to the naked eye, especially given the fact that there was scar tissue there that was visible?
Your answer was:
Yes, there would have been, given that period of time. A: Yes.
Q: Okay.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
State v. Halstead
362 N.W.2d 504 (Supreme Court of Iowa, 1985)
White v. State
380 N.W.2d 1 (Court of Appeals of Iowa, 1985)
Meier v. State
337 N.W.2d 204 (Supreme Court of Iowa, 1983)

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Bluebook (online)
501 N.W.2d 68, 1993 Iowa App. LEXIS 46, 1993 WL 180792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-state-iowactapp-1993.